NLRB Vacates Recent Joint Employer Decision

March 1, 2018

By: Subhash Viswanathan

On February 26, 2018, the National Labor Relations Board issued an order vacating its decision in Hy-Brand Industrial Contractors.  As we recently reported on this blog, the Board's Hy-Brand decision reversed its 2015 Browning-Ferris decision, which had significantly changed the legal standard for determining joint employer status under the National Labor Relations Act.

In its Hy-Brand decision, the Board returned to its prior approach for determining joint employer status, which is that both entities must have direct and immediate control over essential terms and conditions of employment to be considered joint employers.  However, after the issuance of that decision, the Board's Designated Agency Ethics Official determined that Board Member William Emanuel should have recused himself from participating in the proceeding because his former law firm had represented a contractor of Browning-Ferris when the Browning-Ferris case was being considered by the Board.  Based on that determination, the Board voted 3-0 (with Member Emanuel not participating in the vote) to vacate the Hy-Brand decision.

The Board will likely wait until President Trump's nomination of John Ring, an employer-side labor lawyer, is confirmed before reconsidering the Hy-Brand case.  So, the Board may still overrule Browning-Ferris at some later date, but for now, the joint employer standard set forth in Browning-Ferris will continue to be applied.